75 S.W.3d 247 (2002)

L.A.C., a minor, by and through her Next Friend, D.C., Appellant,
v.
WARD PARKWAY SHOPPING CENTER COMPANY, L.P., et al., Respondents.

No. SC 83718.

Supreme Court of Missouri, En Banc.

May 28, 2002.

*250 Scott A. McCreight, Michael S. Ketchmark, Joseph K. Eischens, Kansas City, for Appellant.

Paul P. Hasty, Jr., Rebecca S. McGinley, David Curotto, Douglas R. Richmond Thpmas B. Weaver, Jeffrey T. McPherson, Casey O. Housley, Kansas City, for Respondents.

WILLIAM RAY PRICE, JR., Judge.

I.

Summary

L.A.C., a minor, claims that she was raped at the Ward Parkway Shopping Mall. She brought suit against the owners, operators and managers of the mall and the security company hired by them to provide security services for the mall. The trial court granted summary judgment for the defendants, finding that they had no duty to protect plaintiff from the criminal acts of a third party.

We reverse, because: 1) this type of criminal action was foreseeable so that the owners and managers of the mall had a duty to take reasonable care to protect business invitees; 2) the contract between the owners and managers of the mall and the security company clearly and directly provided for the safety of the mall's business invitees and, as a third party creditor beneficiary, plaintiff can bring suit against the security company for breach of that contract; and 3) the security company had a duty to plaintiff and the other business invitees of the mall to exercise reasonable care in the provision of its security services.

II.

Factual and Procedural Background

A.

The facts in this case are greatly contested. We are bound to review the record in the light most favorable to the party against whom summary judgment was entered. City of Hazelwood v. Peterson, 48 S.W.3d 36, 38-39 (Mo. banc 2001). Viewing the evidence most favorable to plaintiff, the facts are as follows.

On March 15, 1997, L.A.C., a twelve-year old minor, went to Ward Parkway Shopping Center to see a movie with her friend, A.G. After leaving the movie, she and a group of friends gathered in a common area. Also with the group was a fifteen-year old boy, whom plaintiff had met the previous weekend.

While she talked to this young man, he grabbed her purse and ran off with it into a hallway. She followed, demanding its return. The young man replied, "No, not till you give me a kiss." She complied, and the young man returned her purse. But as she turned to walk away, the young man grabbed her, and said, "Let's do it."

The young man picked her up and began to carry her. Plaintiff screamed, hitting him on the back and demanding to be put down. Friends nearby refused to help her because the boy was older and bigger and had a gun showing. The young man briefly put her down, but then said, "[W]e're going to do this," picked her up and carried her into the "catwalk," a walkway connecting the mall to a parking lot. In the catwalk, despite her struggles, the young man raped her.

After the plaintiff was picked up and began screaming, her friend went downstairs and within a minute found an IPC security guard. She told the guard that her friend was in trouble and needed help. The guard dismissed her, saying that the young man was just playing. A.G. then went upstairs and found another IPC officer near the arcade. After explaining *251 what happened, that officer also dismissed her, accusing her of trying to "get some boys for messing with [the girls]."

After her second failed attempt to get help, A.G. saw L.A.C. again. At first, in a state of shock and warned by her assailant to be silent, plaintiff said nothing. However, after a couple of minutes, she broke down and cried, telling her friend that the young man had raped her. Plaintiff reported the rape to the police and received treatment that night at a hospital. Her assailant was arrested the next day and eventually found to have committed rape by the juvenile division of the circuit court.^[1]

B.

Ward Parkway Shopping Center Company, L.P. (WPSCC) and W.S.C. Associates, L.P. (WSC) both own and operate the Ward Parkway Shopping Center (the mall), and G.G. Management (GG) provides management services at the mall pursuant to a management agreement (these parties will be referred to collectively as the Ward Parkway Group). IPC International Corporation (IPC) is a security company with whom GG contracted to provide security for the mall.

The contract between the mall management and IPC contains a number of relevant provisions. Two are especially important. First, IPC security officers are empowered to detain individuals when necessary to protect mall customers from risk of serious injury:

I. 3. H. Under normal circumstances, an employee or agent of the CONTRACTOR, shall avoid making an arrest of any kind; provided, however, the employees or agents of the CONTRACTOR may detain an individual when necessary to protect either that individual or mall customers or employees from risk of serious injury. [emphasis supplied]

Second, IPC and mall management both agreed to cooperate to determine the proper work hours and staffing to "provide adequate security to the mall."

I. 4. HOURS & STAFFING—The daily and weekly schedule of security man-hours and coverage at each location shall be determined by the Manager, subject to input from CONTRACTOR. The hours and number of Security Officers required will change periodically. The Manager has the right to change hours and personnel coverage.

* * *

VI. 5. Manager and Contractor shall agree upon the proper level of staffing needed to provide adequate security to Mall [sic]. Upon agreement, the staffing level shall be conclusively deemed for all purposes to be a material representation by Contractor to Manager that the staffing level is one which will provide full and adequate security to the Mall. CONTRACTOR will be able to provide additional security staff for grand opening events on an "as needed" basis. Officers will be in uniform, and ready for duty at the start of their assigned shifts. [emphasis supplied]

The contract also assigns specific duties to IPC security officers, including making frequent, random rounds of the premises *252 to check for safety hazards.^[2] Security officers are required to be watchful for criminal activities and report any such observations to mall management:

I. 3. B. Report immediately to representatives designated by the Manager any unusual incidents, hazardous conditions, accidents, defects, suspicious activities, or criminal activities observed during the shift.

C. Prepare for the Manager at the end of each shift, a security log report noting therein all incidents, accidents, suspicious activities, hazardous conditions or criminal activities observed. Unless other provisions are made by the parties, all reports shall be prepared on standard log forms, provided by the Manager.

D. Perform such other duties and enforce rules and regulations as are mutually agreed upon by the parties that are reduced to writing, and that are made available to the Security Officers assigned to each location by representatives of the Manager.

IPC agreed to bind its employees to a Policy and Procedures Manual published by IPC:

I. 3. J. Manager has adopted a comprehensive Security Orders Policy and Procedures Manual (herein "the manual".) The manual includes Manager's instructions to CONTRACTOR and a copy of Manager's Safety Regulations. CONTRACTOR and its employees shall be familiar with and will adhere to those instructions and regulations at all times. CONTRACTOR shall disseminate such manual to all Security Officers and shall insure that said Security Officers comply with the content thereof.

IPC agreed to be familiar with and adhere to these instructions and regulations at all times. Two passages from the manual expressly indicate:

The ultimate goal of any successful shopping center Owner, Developer or Manager is the continued patronage of customers to the mall. In each Center, Mall Management endeavors to create a safe, orderly atmosphere in which customers may relax and shop without undue concern for their own safety. In order to sustain and insure this positive atmosphere, the management of your Center has retained the services of IPC International Corporation to provide Mall Public Safety Services.

You have been chosen to be a member of the Public Safety Staff by individuals who feel that you have the potential to be a true asset to the organization-one who has the right combination of knowledge, experience, education, judgment and positive appearance to understand and perform the varied responsibilities of an IPC Mall Public Safety Officer. Given the proper "tools" of knowledge which follow in this manual, you will have everything that you need to perform your duties in an effective and *253 professional manner. It is up to you to earn the respect and confidence of those for whom and with whom you work.

Finally, IPC also distributed a training manual to its employees, which stated:

The personal safety of yourself, fellow Officers, customers and tenants to the mall is the absolute priority at all times

* * *

Our clients are most concerned with the well being of visitors, customers and employees of the shopping center. It is for this reason that Public Safety personnel are present.

* * *

[T]he responsibility for the safety of life and property within the center is shared by tenant stores, civil authorities, center management (through the Public Safety Service) and each individual person who visits the center.

C.

Plaintiff brought suit against all parties for ordinary negligence. She also sued GG and IPC for breach of contract as a third party beneficiary of the management and security contracts. After discovery, Ward Parkway Group moved for summary judgment and IPC moved for judgment on the pleadings. In support of its response to the motions, plaintiff submitted evidence that the mall management was put on notice of criminal activity at the mall, consisting of IPC incident reports and Kansas City police department records.^[3] The IPC records are detailed reports of incidents involving criminal activity that occurred at the mall. Some of the submitted police records correlate with some of the IPC reports. Others that plaintiff submitted in addition to the IPC reports are not detailed, merely listing a crime that allegedly happened at the mall.

The IPC incident reports describe a number of crimes, violent and non-violent, that were reportedly perpetrated on the premises of the Ward Parkway mall within the three years prior to the incident. The reports include one sexual assault, one robbery and abduction, thirteen armed or attempted armed robberies, nine strong-arm or otherwise violent robberies, four aggravated assaults and twenty-eight simple assaults. The IPC reports also include nine incidents labeled "battery," which range from an improper touching, to a fight, to an assault during an attempted theft of an automobile. Three reports indicate unlawful use of a firearm, including one involving a suspect who pointed a weapon at officers after a robbery. (A large number of the proffered IPC reports indicate non-violent crimes, such as one instance of sexual misconduct and numerous instances of disorderly conduct, stalking *254 and public indecency.) In all, at least seventy-five of the crimes were violent, including the following:

_______________________________________________________________________________________
03/13/97      An offender, while stealing her purse, pushed a woman down. She required
               hospitalization.
______________________________________________________________________________________________
03/07/97      In the parking lot, a man attempted to rob a van. He entered the vehicle and
               pulled a knife on a young woman in the car.
______________________________________________________________________________________________
02/26/97      Two men committed armed vehicular robbery against a woman, taking her car
               keys at gunpoint.
______________________________________________________________________________________________
01/15/97      Two women had their purses stolen at gunpoint in the parking lot.
______________________________________________________________________________________________
12/02/96      After a bartender attempted to wake up a man who had fallen asleep at a mall
               restaurant, the man attacked him with a knife. He also assaulted a security
               officer who had attempted to intercede.
______________________________________________________________________________________________
12/01/96      A man approached a woman in the parking lot and threatened to "do her" before
                running off.
______________________________________________________________________________________________
11/23/96      A young man was robbed at gunpoint in the parking lot.
______________________________________________________________________________________________
08/30/96      With a gun, a man in the parking lot forced a female mall employee to give her
               keys to him and stole her car.
______________________________________________________________________________________________
07/26/96      A man approached two female mall employees in the parking lot and robbed one
                of them of her purse at gunpoint.
______________________________________________________________________________________________
06/01/96      An employee of a mall restaurant held the store manager at knife point, forcing
               her to open the safe and then abducting her.
______________________________________________________________________________________________
05/29/96      A man pushed his girlfriend out of a moving car in the parking lot.
______________________________________________________________________________________________
04/15/96      A report was made by a mall restaurant employee of a sexual assault by a fellow
                employee in the mall bathroom.
______________________________________________________________________________________________
12/01/95      During a robbery in the parking lot, a woman was dragged a short distance by
               the offender as he grabbed her purse. She suffered injuries, including a cut
               that required stitches.
______________________________________________________________________________________________
09/29/95      A teenager was molested by a stranger in the mall movie theater.
______________________________________________________________________________________________
08/16/95      A mother and daughter were robbed at gunpoint in the parking lot.
______________________________________________________________________________________________
08/11/95      A woman entering the mall was assaulted by three women, who kicked and
                punched her.
______________________________________________________________________________________________
06/12/95      A mall employee was robbed in the mall of his wallet at knifepoint.
______________________________________________________________________________________________

Many of these crimes, especially some of the most violent, involved female victims. In 1996, a female store manager was abducted and the victim of an armed robbery. Just a few months prior to the incident in this case, a mother and daughter were both robbed at gunpoint in the parking lot. At least three other armed robberies involved female victims and male offenders, as well as virtually every reported strong-armed robbery. Women were also victims of a number of assaults and violent purse snatchings. A statistical analysis of crimes at the shopping center prepared by IPC indicates that a disproportionate number of victims of crime at the mall were women. For example, in 1994, 28.7% of the victims were female adults, compared to only 18.2% male adults. In the first quarter of 1996, 50% of the victims were female and only 21.3% male. In the first quarter of 1997, however, an even percentage of men and women *255 were victims in incidents at the mall.^[4]

In addition to the incident reports detailing criminal activity that occurred on the premises of the shopping center, plaintiff submitted deposition testimony of various corporate officers of GG and IPC. The corporate security director for GG testified as follows:

Q: My question, sir, is whether or not you were aware of the potential risk of a sexual assault occurring at Ward Parkway Mall?

A: I was aware that it was possible for it to occur, yes.

* * *

Q: Do you believe that Ward Parkway Mall has a duty to protect its customers from criminal activity?

A: I believe the owner of the property has a duty, yes.

* * *

Q: And that duty would apply to the type of crimes we're talking about-assault, sexual assault, rape—correct?

A: Correct.

[objections omitted]

An executive vice president of IPC answered affirmatively that rape in isolated areas of a mall is a security concern of the company and that rape is "a crime that we are constantly vigilant for in all areas of the shopping center."

A 1995 security audit conducted for the mall management by IPC that indicated the catwalk area was frequented by "unruly youth" and had been the site of a "high level of incidents." The audit identified a number of security issues that IPC suggested should be implemented to improve safety at the shopping center. These proposals included enhancing the lighting in the catwalk area and conducting an evaluation to determine if an additional security officer should be deployed on Friday and Saturday evenings.^[5] The audit noted that the lights along the base of the wall of the theater exits, near the catwalk, were not illuminated.

The trial court granted the Ward Parkway Group's motion for summary judgment and IPC's motion for judgment on the pleadings on all claims. In granting judgment for IPC, the trial court considered depositions, affidavits, documents and other evidence outside of the pleadings. We, therefore, review the grant of the motion for dismissal on the pleadings as a grant of a motion for summary judgment.^[6]

Plaintiff appeals the judgment against her on her negligence claims against all parties. She also appeals the judgment against her on her contract claims against IPC. Plaintiff does not appeal the judgment on her contract claim against GG.^[7]

*256 III.

Analysis

The propriety of summary judgment is an issue of law, and appellate review is de novo. City of Hazelwood v. Peterson, 48 S.W.3d 36, 38-39 (Mo. banc 2001). Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. The burden is on the moving party to demonstrate that there are no genuine issues of material fact. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). Where the record contains competent materials establishing two plausible but contradictory accounts of the essential facts, a "genuine issue" of material fact exists. Martin v. City of Washington, 848 S.W.2d 487, 492 (Mo. banc 1993); Montgomery v. S. County Radiologists, 49 S.W.3d 191, 193 (Mo. banc 2001).

A.

Claims Against Ward Parkway Group Defendants

Plaintiff asserts traditional negligence claims against the Ward Parkway Group defendants. Ward Parkway Group obtained judgment in the trial court on the basis that the criminal acts committed against plaintiff were not foreseeable and defendants accordingly had no duty to plaintiff.

Plaintiff alleges that numerous violent crimes committed on the premises of the mall in the previous three years, as well as other evidence of foreseeability, indicate that crimes such as rape were foreseeable. She argues that Ward Parkway Group owed business invitees, such as herself, a duty to take reasonable measures to protect them from criminal acts occurring on the premises by unknown third parties.

i.

Different states have devised at least four methods to frame the issue of business owners' liability in tort for criminal acts of unknown third persons. The most stringent method, "the specific harm" test, requires notice of specific dangers just prior to the assault. Burns v. Johnson, 250 Va. 41, 458 S.E.2d 448 (1995). A second method, the "prior similar incidents" rule, was the first to gain widespread support. Under that approach, duty is only found if plaintiff can prove that defendant had notice of a sufficient number of prior acts of similar violent crime occurring on the premises. Lauersdorf v. Supermarket Gen. Corp., 239 A.D.2d 319, 657 N.Y.S.2d 732 (N.Y.App.Div.1997). In recent years, the "prior similar incidents" test has given way to the less rigid "balancing test" approach, Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (1993); McClung v. Delta Square Limited Partnership, 937 S.W.2d 891 (Tenn.1996), or the "totality of the circumstances" test. Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993); Galloway v. Bankers Trust Co., 420 N.W.2d 437 (Iowa 1988). See generally 31 A.L.R.5th 550; Prem Liab 2d s. 49:3; 57 Wash & Lee L.Rev. 611, 617, n. 42 (2000).

Missouri set out its approach almost fifteen years ago in Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988). Madden consisted of two consolidated cases: Madden and Decker v. Gramex Corporation. The plaintiff in Madden was kidnapped from the parking lot of a restaurant and later sexually assaulted. 758 S.W.2d at 60. The restaurant was found to have a duty to protect its business invitees, because over the three-year period preceding the assault, numerous crimes were committed on the *257 premises. Id. These crimes included six armed robberies, six strong-arm robberies, one assault and one purse snatching. Id. Decker involved the abduction and murder of two customers. 758 S.W.2d at 61. A slightly lower level of criminal activity on the premises of a grocery store also established a duty of care to protect business invitees. Id. The plaintiffs in Decker submitted evidence of four armed robberies, assault, assault with a deadly weapon and flourishing a deadly weapon. Id. In Madden, the Court did not find it necessary to adopt any special test or method to analyze the issue. Instead, it merely followed traditional principles of the law of negligence.

Tort law focuses on three basic elements: duty, breach and damages. Accordingly, "[i]n any action for negligence, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant's failure proximately caused injury to the plaintiff." Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000).

"Whether a duty exists is purely a question of law." Lopez, 26 S.W.3d at 155. "The touchstone for the creation of a duty is foreseeability." Madden, 758 S.W.2d at 62 (Mo. banc 1988). "A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury." Id. (citations omitted). "Where the existence of a duty is established, however, it is not one to protect against every possible injury which might occur." Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985) (citations omitted). "Rather, it is generally measured by whether or not a reasonably prudent person would have anticipated danger and provided against it." Id.

A duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable. "Generally, there is no duty to protect business invitees from the criminal acts of unknown third persons." Madden, 758 S.W.2d at 62. However, in situations where a special relationship exists, such as that between a business owner and invitee, and injury is foreseeable to recognizable third parties, a duty will be imposed. Hence, "a duty to exercise care [to protect business invitees] may be imposed by common law under the facts and circumstances of a given case." Madden, 758 S.W.2d at 62.

There are two "special facts and circumstances" exceptions to the rule that businesses generally have no duty to protect invitees from criminal acts of third persons. Faheen v. City Parking Corp., 734 S.W.2d 270, 272-73 (Mo.App.1987). Under the first exception, "the duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury." Id. The other exception recognizes "a duty [on the part of business owners] to protect their invitees from the criminal attacks of unknown third persons" under certain special circumstances. Madden, 758 S.W.2d at 62. "A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury." Id. at 62.

It is the second exception that is primarily at issue here.^[8] There is no evidence in the record to establish that *258 defendants knew the assailant to be a violent individual or a particular threat to the safety of other persons prior to this incident. Thus, in order to establish duty, plaintiff must show evidence that would cause a reasonable person to anticipate danger and take precautionary actions to protect its business invitees against the criminal activities of unknown third parties. Madden, 758 S.W.2d at 62. Specifically, "plaintiff need not show that the very injury resulting from defendant's negligence was foreseeable, but merely that a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances." Smith v. Archbishop of St. Louis, 632 S.W.2d 516, 521 (Mo.App.1982). Violent crimes are foreseeable if the premises have been the site of other prior violent crimes, including robbery, assault, burglary, stealing, arson, abduction, murder, sexual assault and rape. Madden, 758 S.W.2d at 62, n. 2.

A number of subsequent commentators and Missouri courts have attempted to categorize the Madden decision, to mixed results, concerning the precise requirements of the second exception. Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 523 (Mo.App.1998) (prior specific incidents); Becker v. Diamond Parking, Inc., 768 S.W.2d 169, 170-71 (Mo.App.1989) (totality of the circumstances); Hunter M. Bagby, Recent Development: Premises Liability, 23 Am. J. Trial Advoc. 461, 464 (1999) (balancing test, citing Aaron v. Havens, 758 S.W.2d 446 (Mo. banc 1988)); See also William M. Corrigan, Jr. & Timothy W. Van Ronzelen, Liability for Criminal Acts of Third Parties, 52 J. Mo. B. 359 (1996). But see Timothy A. Reuschel, Here's Your Burrito and Watch Your Back: Does Missouri Really Want to Hold Businesses Liable for Attacks on Patrons?, 65 Mo. L.Rev. 255, 258 (2000) ("In Madden, the court did not explicitly adopt the `totality of the circumstances' test or the `prior similar incidents' test for foreseeability.") Although Madden considered prior similar incidents, it used language implying a totality of the circumstances test ("the facts and circumstances of a given case") Madden, 758 S.W.2d at 62. As will be discussed below, this case does not require that we enter the fray concerning whether a "prior similar incidents," "totality of the circumstances" or a "balancing" test be adopted because the evidence set forth by plaintiff would satisfy any of the three. Moreover, it may well be that adoption of any of these approaches is less helpful than simply utilizing traditional tort language as was done in Madden. A traditional tort approach recognizes that both duty and breach adapt to the precise situation of the case, and that duty does not imply strict liability or even breach.

ii.

IPC reports indicate that seventy-five violent crimes occurred on mall property in the three years preceding the attack on plaintiff. Of these, sixty-two percent of the crimes with identifiable victims involved solely female victims.^[9] As detailed above, included in this number are some of the most violent, including abduction, sexual assault and a number of violent, armed and strong-arm robberies. Defendants attempt to argue that a number of these crimes occurred outside of the mall in the parking lot^[10] or did not include common *259 elements with plaintiff's rape, and were therefore not similar. Defendants' analysis in this regard is too restrictive.

Foreseeability does not require identical crimes in identical locations. Violent crimes against women, particularly, serve sufficient notice to reasonable individuals that other violent crimes, including sexual assault or rape of women, may occur. Defendants argue that incidents involving "escaping suspects, verbal and physical altercations, robbery and indecent acts" are not sufficiently similar to the rape that is alleged to have occurred here. This is not realistic. These are precisely the type of criminal acts that would put reasonable and prudent people on notice that precautions should be taken, as is evidenced by the testimony of GG's corporate security director that:

Q: My question, sir, is whether or not you were aware of the potential risk of a sexual assault occurring at Ward Parkway Mall?

A: I was aware that it was possible for it to occur, yes.

* * *

Q: Do you believe that Ward Parkway Mall has a duty to protect its customers from criminal activity?

A: I believe the owner of the property has a duty, yes.

* * *

Q: And that duty would apply to the type of crimes we're talking about—assault, sexual assault, rape-correct?

A: Correct.

[objections omitted];

and IPC's executive vice president who answered affirmatively that rape in isolated areas of a mall is a security concern of the company and that rape is "a crime that we are constantly vigilant for in all areas of the shopping center;" and the conclusions of IPC's security audit that indicated that the crime scene was frequented by "unruly youth" and had been the site of a "high level of incidents." Although this testimony cannot be taken as a binding legal position on the part of defendants, it certainly can be considered as evidence of foreseeability.

The incident reports and the testimony of defendants' employees clearly establish that they were aware of a significant number of violent crimes at the mall prior to this occurrence. Continued violent crime, such as the alleged rape of L.A.C. was foreseeable.^[11] Defendants had a duty to take reasonable measures to protect mall customers, and specifically L.A.C., from this type of violent criminal activity.^[12]

*260 B.

Claims Against IPC

Plaintiff asserts two claims against IPC, breach of contract and negligence. IPC obtained judgment in the trial court on the basis that it had no obligation to plaintiff under the contract and no duty to plaintiff in tort. Although the analysis as to each claim is similar, each claim arises under different areas of law, and each claim must be considered separately.

i.

Contract Claims Against IPC

Plaintiff, of course, is not a signatory party to the IPC contract. The validity of her claim rests up whether she can make her claim as a third party beneficiary. "A third party beneficiary is one who is not privy to a contract or its consideration but who may nonetheless maintain a cause of action for breach of the contract." Andes v. Albano, 853 S.W.2d 936, 942 (Mo. banc 1993). "Only those third parties for whose primary benefit the parties contract may maintain an action." Id. "[I]t is not necessary for the parties to the contract to have as their `primary object' the goal of benefiting the third parties, but only that the third parties be primary beneficiaries." Id.

"The intention of the parties is to be gleaned from the four corners of the contract, and if uncertain or ambiguous, from the circumstances surrounding its execution." Terre Du Lac Ass'n. v. Terre Du Lac, Inc., 737 S.W.2d 206, 213 (Mo.App.1987). "Third party beneficiary rights depend on, and are measured by, the terms of the contract between the promisor and the promisee." Id. "Although it is not necessary that the third party beneficiary be named in the contract, the terms of the contract must express directly and clearly an intent to benefit an identifiable person or class." Id.

There are three types of third party beneficiaries: donee, creditor and incidental. The first two categories may recover, the third may not. Kansas City N.O. Nelson Co. v. Mid-Western Construction Co. of Missouri, Inc., 782 S.W.2d 672, 677 (Mo.App.1989). "A person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed nor asserted to be due from the promisee to the beneficiary." Id. "A person is a creditor beneficiary if the performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary." Id. "Finally, if the person is neither a donee beneficiary nor a creditor beneficiary, he is an incidental beneficiary."

As previously indicated, the owners and the operators of the mall had a duty to take reasonable precautions to protect mall customers from violent crime. The Ward Parkway Group contracted with IPC for this very purpose. Brief review of certain provisions of the IPC contract make this clear.

First, IPC security officers are empowered to detain suspects when necessary to protect mall customers from risk of serious injury:

*261 I. 3. H. Under normal circumstances, an employee or agent of the CONTRACTOR, shall avoid making an arrest of any kind; provided, however, the employees or agents of the CONTRACTOR may detain an individual when necessary to protect either that individual or mall customers or employees from risk of serious injury. [emphasis supplied]

Second, IPC and mall management both agreed to cooperate to determine the proper work hours and staffing to "provide adequate security to the mall."

I. 4. Hours & Staffing—The daily and weekly schedule of security man-hours and coverage at each location shall be determined by the Manager, subject to input from CONTRACTOR. The hours and number of Security Officers required will change periodically. The Manager has the right to change hours and personnel coverage.

* * *

VI. 5. Manager and Contractor shall agree upon the proper level of staffing needed to provide adequate security to the mall. Upon agreement, the staffing level shall be conclusively deemed for all purposes to be a material representation by Contractor to Manager that the staffing level is one which will provide full and adequate security to Mall [sic]. CONTRACTOR will be able to provide additional security staff for grand opening events on an "as needed" b